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Comment The Information Commissioner has been widely condemned by privacy activists for his perceived inaction with respect to Google.

Although he concluded that it was likely that there was a significant breach of the Data Protection Act when Google Street View cars collected Wi-Fi data as part of their street mapping exercises, he has rejected calls for his office to impose a monetary penalty. Instead, he has “invited” Google UK to sign an undertaking – something that has yet to happen.

From the privacy lobby’s perspective, the Commissioner has failed miserably. Instead of taking the opportunity to stamp on Google’s feet, he has chosen instead to tickle their toes. These activists claim that Google has been invading privacy for years. They say Google was at the mercy of the Commissioner, and a public flogging could have been administered by virtue of the Commissioner’s new powers to levy fines, but that the Commissioner bottled out.

Well, I disagree with the above. I think the Commissioner has serious problems with an issuing of a Monetary Penalty Notice as there would be a need for hard evidence of a “substantial and serious” breach of the data protection principles. This would be pretty hard to establish if most of the relevant Wi-Fi data turns out not to be personal data!

Also, to establish the “substantial breach” threshold, you need a lot more than the capture of some incidental email personal data by accident. There is no sensitive personal data involved and what confidential personal data has been captured would also be incidental. Google has not lost anything and the company is going to get rid of the all the data in question; remember, there is no obligation to do this if the data is not personal data.

In addition, a Monetary Penalty Notice would automatically put the ICO in conflict with Google. Google’s well-financed big legal battalions would then be employed to show that the Commissioner was wrong (mainly I suspect because most of the data wasn’t personal data and the breach was not substantial enough) and the legal wrangling would take ages to resolve. The legal fees on this case would eat up all of the £3 million or so legal budget of the ICO and a long stream of appeals to would inevitably follow.

From the ICO’s perspective, imposing a fine on Google over this Wi-Fi issue is an outcome where there is a great deal of uncertainty. It might obtain plaudits from the privacy lobby, but in practice it gets nowhere fast and this could easily turn out to be a futile gesture that would kiss goodbye to much of the ICO's legal resources.

Instead, the Commissioner has decided to play poker with Google. He has given the company 21 days to accept the public undertaking which commits it to a voluntary audit of Google’s procedures, to instigate training programmes in security and UK data-protection requirements, and to commence privacy-by-design initiatives. Do you think that the CEO of Google will be keen to put his name to that (so it can be referenced in future, in perpetuity) with the implication that the company (for all its own pro-privacy propaganda) have not taken some basic steps to protect privacy?

Finally, if Google fail to sign-up, the Commissioner says he will serve an Enforcement Notice. This gives the Commissioner the high moral ground in any further legal action, for if he does take such action – he is only taking action because Google has not signed a voluntary undertaking to do the decent things that most data controllers would do if they claimed to protect privacy.

So, put 24 November in your diary. It is the time when Google has to decide publicly whether to accept the undertaking or force the Commissioner to fight over an Enforcement Notice.